This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-83

 

State of Minnesota,

Respondent,

 

vs.

 

C. Dennis Simion,

Appellant.

 

Filed May 15, 2007

Affirmed in part, reversed in part, and remanded

Worke, Judge

 

Hennepin County District Court

File No. 03090639

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Worke, Judge; and Crippen, Judge.[*]

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from convictions for theft from a person with superior right to possession and damage to property, appellant argues that (1) the district court lacked jurisdiction because the state failed to show that any part of the offenses occurred in Minnesota; (2) the evidence was insufficient to support his convictions; (3) the district court abused its discretion by instructing the jury on “superior right of possession”; (4) the prosecutor committed prejudicial misconduct by commenting on appellant’s presence during trial, accusing defense counsel of conspiring to fabricate testimony, asking appellant were-they-lying questions, and denigrating the defense; and (5) the district court abused its discretion by ordering him to pay restitution.  We affirm on all issues, except   restitution, which we reverse and remand to the district court.

   FACTS

            In June 2003, appellant C. Dennis Simion, a truck driver, requested that President Line Inc. (PLI), his employer, order a custom captain seat for his truck.  PLI agreed to buy the $1,709.23 seat, and appellant agreed to have $50 deducted each week from his paycheck to reimburse PLI for the seat.

            In September, Minneapolis police officers were dispatched to PLI on a report of an employee causing a disturbance.  PLI’s president reported that appellant threatened him and other employees.  Appellant left before officers arrived.  PLI’s president told the officers that he inspected the company truck that appellant had been assigned and discovered that the truck was damaged and that company property had been removed, including the captain seat.  Officers executed a search warrant on appellant’s residence in Wisconsin and found the captain seat. 

            A jury found appellant guilty of theft from a person with superior right of possession and damage to property, and not guilty of theft by swindle.  The district court denied appellant’s motions for a judgment of acquittal or for a new trial, and in sentencing appellant, ordered restitution in the amount of $1,509.23.  This appeal follows.

D E C I S I O N

Jurisdiction

            Appellant argues that the district court lacked jurisdiction because he removed the property from the truck at his home in Wisconsin and that no part of the offenses occurred in Minnesota.  “On appeal, this court reviews jurisdictional questions de novo.”  Sykes v. State, 578 N.W.2d 807, 811 (Minn. App. 1998), review denied (Minn. July 16, 1998). 

            Jurisdiction refers to the court’s power to hear and decide a dispute.  State v. Smith, 421 N.W.2d 315, 318 (Minn. 1988).   In criminal prosecutions, jurisdiction is governed by Minn. Stat. § 609.025 (2002), which provides:

            A person may be convicted and sentenced under the law of this state if the person:

 (1) [c]ommits an offense in whole or in part within this state; or

 (2) [b]eing without the state, causes, aids or abets another to commit a crime within the state; or

 (3) [b]eing without the state, intentionally causes a result within the state prohibited by the criminal laws of this state.

 

            In Sykes, the defendant pleaded guilty to terroristic threats after sending a threatening letter and placing a threatening phone call from England to an organization’s Minnesota office.  578 N.W.2d at 809.  Sykes argued that Minnesota lacked jurisdiction because “no operative event” constituting an element of the offense took place in the state.  Id.at 810.  This court rejected Sykes’s argument “that only the country of origin of the threats has jurisdiction to charge a crime,” and held that jurisdiction was proper because when Sykes composed the letter and made the phone call he intended for his threatening messages to reach the Minnesota victims.  Id.at 812.

            Similar to Sykes, the offenses that appellant was convicted of caused a result in Minnesota.  Appellant was convicted of theft from person with superior right of possession, in violation of Minn. Stat. § 609.52, subd. 2(2) (2002).  A person is guilty of theft if that person having “a legal interest in movable property, intentionally and without consent, takes the property out of the possession of a pledgee or other person having a superior right of possession, with intent thereby to deprive the pledgee or other person permanently of the possession of the property.”  Minn. Stat. § 609.52, subd. 2(2). 

            Here, appellant had a legal interest in the seat.  Appellant testified that he removed all of his “personal belongings,” including the seat, from the truck.  There was also evidence that PLI owned the seat until appellant paid for it.  Appellant also testified that he took the captain’s seat out in Wisconsin; left it at his home and replaced it with another seat; and was only going to put the captain’s seat back in if he drove to Minnesota and was paid.  Appellant quit and left the truck at PLI in Minnesota without the captain’s seat.  Therefore, while appellant took the seat out of the truck in Wisconsin, the act caused an injury to PLI, the party with a superior right of possession, in Minnesota, and jurisdiction was proper.

            Appellant was also convicted of damage to property, in violation of Minn. Stat. § 609.595, subd. 1(3) (2002).  A person is guilty of damage to property if that person “intentionally causes damage to physical property of another without the latter’s consent” and “the damage reduces the value of the property by more than $500 measured by the cost of repair and replacement.”  Minn. Stat. § 609.595, subd. 1(3).  Appellant testified that he took the property out of the truck in Wisconsin, and thereby causing damage, because he did not want to do it in Minnesota.  The truck belonged to PLI, which was headquartered in Minnesota, and PLI did not consent to appellant causing damage to the truck.  Additionally, appellant drove the truck back to Minnesota where it was repaired.  Therefore, appellant caused damage to PLI’s truck while in Wisconsin, but the act caused a result in Minnesota and jurisdiction was proper.

Sufficiency of the Evidence 

 

Appellant argues that the evidence was insufficient to support his conviction of theft from a person with superior right of possession. When the sufficiency of the evidence is challenged, this court’s review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient” to support the verdict.  State v. Webb,440 N.W.2d 426, 430 (Minn. 1989).  This court assumes that the fact-finder, which has the exclusive function of judging credibility, believed the state’s witnesses and disbelieved contrary evidence.  Dale v. State,535 N.W.2d 619, 623 (Minn. 1995).  “We will not disturb the verdict if the [fact-finder], acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt,” could have reasonably concluded that appellant was guilty of the charged offense.  State v. Alton,432 N.W.2d 754, 756 (Minn. 1988).  Overturning a jury verdict is a heavy burden for a defendant.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).

Appellant contends that the state failed to show that he had a legal interest in the seat because all of the state’s witnesses testified that PLI owned the seat until appellant paid for it.  But appellant testified that he removed his “personal belongings” from the truck, including the seat.  Appellant also testified that he and PLI had an agreement that PLI would pay for the seat and appellant would own the seat after he reimbursed PLI.  Appellant made payments on the seat, but quit before he fully reimbursed PLI.  The evidence is sufficient to show that appellant had a legal interest in the seat. 

Appellant contends that the state failed to show that he took the seat out of PLI’s possession because PLI never re-established possession of the truck or seat.  But possession “is not limited to actual manual control . . . but extends to things under one’s power and control.”  Black’s Law Dictionary 1164 (6th ed. 1990).  PLI had power and control over the truck and seat because PLI owned the truck and assigned it to appellant and purchased the seat and was being reimbursed by appellant.  The evidence is sufficient to show that PLI had possession of the seat. 

Finally, appellant contends that the state failed to show that PLI had a superior right of possession because that right flows from a possessory lien.  Appellant relies on State v. Cohen, in which a woman gave her fur coat to a furrier for alterations.  State v. Cohen, 196 Minn. 39, 40, 263 N.W. 922, 923 (1935).  When the furrier returned the coat, the woman, unhappy with the alterations, took the coat into her home and refused to pay the furrier.  Id. at 40-41, 263 N.W. at 923.  The court held that the evidence was sufficient to find the woman guilty of intending to deprive the furrier of his lien.  Id.at 41, 263 N.W. at 924.  But Minnesota law requires that the property be taken from “a pledgee or other person having a superior right of possession.”  Minn. Stat. § 609.52, subd. 2(2) (emphasis added).  The statute is not limited to situations involving a possessory lien.  Therefore, the state was not required to show that PLI had a possessory lien.  The evidence was sufficient for the jury to find appellant guilty of theft from a person with a superior right of possession. 

Jury Instructions

            Appellant argues that the district court abused its discretion by failing to instruct the jury on a “superior right.”  District courts have broad discretion in selecting the language in jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  If the jury instructions correctly state the law in language that can be understood by the jury, there is no reversible error.  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).

            Appellant argues that the district court abused its discretion when it instructed the jury that:

            The State has offered evidence that [PLI] owned the custom captain’s chair until it was fully paid for by [appellant].  [Appellant] offered testimony that he owned the . . . chair upon purchase.  If you find that the State has proven its point beyond a reasonable doubt, then [PLI] had a right of possession superior to that of [appellant].

 

Appellant contends that the instruction relieved the state of having to prove an element of the charge by directing the jury to find that PLI had a superior right of possession if the state showed that PLI owned the seat until appellant paid for it.  But the comment to the jury instruction on superior right provides that:

            The question whether one right is superior to another is one of law, and for the court to decide.  The question whether a particular relationship existed involves a question of fact.  The judge should formulate an instruction, similar to [The State has offered evidence that the defendant had given possession of the ___ to ___ as security for a loan.  If you find that the State has proven this beyond a reasonable doubt, then ___ had a right of possession superior to that of the defendant]. 

 

10 Minnesota Practice, CRIMJIG 16.04 (2006).  The district court followed the directive in the comment and instructed the jury that if the state proved beyond a reasonable doubt that PLI owned the seat until appellant paid for it, PLI had a superior right of possession.  Appellant correctly argues, however, that the instruction misstates the law because ownership does not equate to a superior right of possession.  See Cohen, 196 Minn. at 42, 263 N.W. at 924.  But here, two parties claim to own the seat.  Appellant testified that he took all of his “personal belongings,” including the seat, out of the truck.  Witnesses for the state testified that PLI owned the seat until appellant paid for it.  Therefore, although ownership does not always equate to a superior right of possession, in this case that is the interest that both parties claimed to have.  The district court did not abuse its discretion in its instructions to the jury.

Prosecutorial Misconduct

 

Appellant argues that the prosecutor committed prejudicial misconduct.  A district court’s denial of a new-trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).   

Objected-to Misconduct

Appellant argues that the prosecutor committed misconduct in his closing argument.  “Whether the prosecutor acted improperly in his final argument to the jury is largely a matter within the sound discretion of the [district] court.”  State v. Fossen, 282 N.W.2d 496, 503 (Minn. 1979) (footnote omitted).  This court reviews prosecutorial misconduct to determine whether the misconduct was harmless beyond a reasonable doubt.  State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006) (quoting State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006)).  Prosecutorial misconduct is harmless beyond a reasonable doubt if the jury’s verdict was surely unattributable to the misconduct.  Id. To determine whether a prosecutor’s statements during closing argument were improper, this court reviews the “closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.”  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

            Appellant argues that the prosecutor committed misconduct by commenting on appellant’s presence during the trial and his ability to listen to the witnesses’ testimony.  One of the most basic rights guaranteed by the Confrontation Clause is a defendant’s right to be present during his trial.  Illinois v. Allen,397 U.S. 337, 338, 90 S. Ct. 1057, 1058 (1970).   In Swanson, the prosecutor implied that Swanson tailored his testimony to the state’s evidence.  707 N.W.2d at 657.  The court determined that “[w]ithout specific evidence of tailoring, such questions and comments by the prosecution imply that all defendants are less believable simply as a result of exercising the right of confrontation.”  Id.at 658.  The court held that the comments were error because the record contained no evidence of tailoring.  Id.

Here, the prosecutor stated:

                        [W]hen you evaluate [appellant’s] testimony, please keep in mind that he was the only individual in this whole case that had the opportunity to sit through and listen to everybody’s testimony and then he was able to tailor his own testimony to fit the facts that he heard. 

 

The prosecutor erred in making this comment, but the error was harmless beyond a reasonable doubt.  This is especially true because this comment constituted one sentence of the prosecutor’s argument that consumed approximately 36 pages of a transcript.  Further, appellant is giving this comment undue prominence because it was obvious to the jury that appellant attended the trial every day and listened to the witnesses testify.  Therefore, the verdict was unattributable to the comment. 

            During his closing argument the prosecutor addressed the theft-by-swindle charge and inconsistencies in appellant’s testimony and documents.  The prosecutor stated:

                        [Appellant] could not explain the inconsistencies.  Then we took a break and then after he got the chance to go out in the hallway and consult with his attorney, lo and behold Brian Hill made him doctor this document.

 

The verdict was surely unattributable to any misconduct because the jury found appellant not guilty of the theft-by-swindle charge. 

Unobjected-to Misconduct

Appellant argues that the prosecutor committed misconduct by asking appellant were-they-lying questions and by denigrating the defense.  Appellant did not object at trial.  The failure to object implies that the misconduct was not prejudicial and “weighs heavily against granting any remedy.”  State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997).  “[A]ppellate courts should use the plain error doctrine when examining unobjected-to prosecutorial misconduct.”  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  In assessing whether plain error occurred, we must determine whether (1) there was error, (2) the error was plain, and (3) the error affected the defendant’s substantial rights.  State v. Griller,583 N.W.2d 736, 740 (Minn. 1998).  If all three requirements are satisfied, this court may correct the error if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v. Crowsbreast,629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997)).

Appellant argues that the prosecutor committed misconduct by asking appellant whether the state’s witnesses were lying.  Generally, were-they-lying questions are improper because they are perceived as unfairly giving the jury the impression that in order to acquit, it must determine that the witness whose testimony contradicts the defendant’s testimony is lying.  State v. Pilot, 595 N.W.2d 511,516 (Minn. 1999).    But a prosecutor may ask were-they-lying questions if “the defendant holds the issue of the credibility of the state’s witnesses in central focus.”  State v. Morton, 701 N.W.2d 225, 233 (Minn. 2005) (quotation omitted).  This type of question may be permissible in clarifying testimony, when the jury must evaluate “the credibility of a witness claiming that everyone but the witness lied, or [when the witness] flatly denies the occurrence of events.”  Pilot, 595 N.W.2d at 518.       

Appellant contends that the prosecutor asked were-they-lying questions four times.  First, relating to the theft-by-swindle charge, appellant testified that he had his tires replaced and the individual who provided this service would not take a check, so appellant made the check from PLI out to himself and paid this person cash.  Former PLI employees testified that drivers were not allowed to make these checks out to themselves, but appellant testified that he wrote these checks out to himself several times.  The prosecutor asked appellant if PLI’s former general manager was lying when he testified that it was not common practice for drivers to make these checks out to themselves.  Appellant has failed to meet the plain-error test; even if the prosecutor erred, appellant’s substantial rights were not affected because the jury found appellant not guilty of the theft-by-swindle charge. 

Second, the prosecutor asked appellant if PLI’s former general manager lied when he testified about his inspection of the damage to the truck.  Appellant responded:  “If I could have called him a liar, I would have.”  Appellant claimed that this witness lied, and thus, the prosecutor did not err in asking if the witness was lying.  The prosecutor then asked appellant if he recalled PLI’s former general manager’s testimony regarding when the damage to the truck was discovered.  Appellant responded:  “I remember him lying to you.” The prosecutor asked appellant if he believed that this witness, who no longer worked for PLI and lives in Arkansas, would come back to Minnesota in order to lie to the jury.  Appellant replied that he did not know why this witness came back.  Again, the prosecutor did not err because appellant challenged the credibility of this witness and testified that this witness lied. 

Finally, the prosecutor asked appellant if he heard the testimony of Robert Anderson, from whom PLI requested an estimate for the cost to repair the truck.  Anderson testified that the damage to the truck was deliberate.  Appellant denied that he deliberately damaged the truck.  The prosecutor asked appellant what motive Anderson had to lie.  Again, the witness’s credibility was a central focus and the prosecutor did not err when he asked what motive this witness had to lie.   

Appellant also argues that the prosecutor committed misconduct by denigrating the defense.  Prosecutors are allowed to argue that a particular defense has no merit or anticipate arguments defense counsel will make in their closing argument, but they are not allowed to denigrate or belittle the defense itself.  State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997); see, e.g., State v. Coleman, 560 N.W.2d 717, 721 (Minn. App. 1997) (stating it is misconduct to accuse the defendant of “shopping around for a defense” and deliberately attempting to mislead the jury). 

Here, in the state’s closing argument, the prosecutor stated:

[Appellant] has attempted to reflect [sic] your attention from the real issues in this case by attempting to confuse the issues with claims of disputes over money, civil liability, who believed who owed money.  None of these things are legal defenses to his actions.

 . . . .

During the trial, [appellant] has taken every opportunity to dirty up [PLI] by accusing and insinuating that they were violating some rule or regulation, when in reality it was actually [appellant] who—whose conduct violated the law.

 

The prosecutor did not err because the comments did not denigrate the defense, but rather attempted to show that appellant’s defenses were without merit.  Appellant fails under the plain-error test to show that this comment affected his substantial rights. 

Restitution

Appellant argues that the district court abused its discretion in ordering restitution. The victim of a crime has the right to receive restitution for loss caused by a convicted offender.  Minn. Stat. § 611A.04, subd. 1(a) (2002).  The burden of proving the loss is on the prosecution.  Minn. Stat. § 611A.045, subd. 3(a) (2002).  District courts have broad discretion in ordering restitution, and this court reviews a restitution order for an abuse of that discretion.  State v. Tenerelli, 598 N.W.2d 668, 672 (Minn. 1999).

            Here, the state requested $1,509.23, the difference between the cost of the seat and what appellant paid PLI.  Appellant argued that PLI sold the seat for $900.  The district court ordered that appellant pay $1,509.23, and then provided that a hearing could be held to determine if that amount was correct.  The record fails to show that a hearing was held and the state concedes that the amount of restitution was in error.  This issue is remanded to the district court.

            Affirmed in part, reversed in part, and remanded.